On May 13, 2019, Governor Larry Hogan signed into law Senate Bill 699, helping hundreds of Marylanders who receive services at home through Community First Choice (CFC) to avoid losing access to those services once they get Medicare. Beginning July 1, 2019, affected Marylanders will be allowed to apply to the Medicaid Home & Community Based Options Waiver withouthaving to go on its eight-year waiting list or having to go through unnecessary and extremely costly nursing home admission.

Background

Under federal law, Medicaid Expansion coverage ends at age 65, or when the individual gets Medicare (i.e., either enrolls due to disability or turns age 65). In Maryland, if the individual qualified for CFC services through their Medicaid Expansion coverage, this also means that they will lose their CFC services when they get Medicare.

For most, or about 75% of those affected with too much income or assets, the only viable option to resume receiving CFC services is to access the Medicaid Home & Community Based Options Waiver. However, the Waiver currently has a 22,000-person, eight-year waiting list. In addition, prior to Senate Bill 699, the only way to bypass the waiting list was to transition back into the community after a qualifying 30 day nursing home stay while on Medicaid. Thus, for many Marylanders who lost their CFC services after getting Medicare, accessing the Waiver typically meant that they had to first go through unnecessary and extremely costly nursing home admission.

How Do I Know If I Am Affected?

Generally, those that may be affected are Marylanders who both: (1) have or had Medicaid Expansion coverage; and (2) receive or received Community First Choice services at home. In addition, those at risk of losing access to services tend to have monthly incomes of $771 – $1,396 (in 2019)*, or, assets greater than $2,000 (not including the home and one car).

To find out if you or a loved one can benefit from Senate Bill 699, contact your local Maryland Access Point office or the lawyers at Frank, Frank & Scherr, LLC.

*These figures are subject to change annually. Refer to the current income limits for SSI and Medicaid Expansion, respectively.

May 1, 2019

NAELA News:

(Reuters Health) – Older adults with hearing loss may be more likely than peers without hearing difficulty to develop symptoms of depression, a research review suggests.

Globally, more than 1.3 billion people currently live with some form of hearing loss, and their ranks are expected to rise with the aging population, the study team notes in The Gerontologist. About 13 percent of adults 40 to 49 years old have hearing loss, as do 45 percent of people 60 to 69 years old and 90 percent of adults 80 and older, the authors write.

To assess the connection between hearing loss and depression, researchers analyzed data from 35 previous studies with a total of 147,148 participants who were at least 60 years old.

Compared to people without hearing loss, older adults with some form of hearing loss were 47 percent more likely to have symptoms of depression, the study found.

“We know that older adults with hearing loss often withdraw from social occasions, like family events because they have trouble understanding others in noisy situations, which can lead to emotional and social loneliness,” said lead study author Blake Lawrence of the Ear Science Institute Australia, in Subiaco, and the University of Western Australia in Crawley.

“We also know that older adults with hearing loss are more likely to experience mild cognitive decline and difficulty completing daily activities, which can have an additional negative impact on their quality of life and increase the risk of developing depression,” Lawrence said by email.

“It is therefore possible that changes during older age that are often described as a ‘normal part of aging’ may actually be contributing to the development of depressive symptoms in older adults with hearing loss,” Lawrence said.

The connection between hearing loss and depression didn’t appear to be influenced by whether people used hearing aids, the study also found.

One limitation of the analysis is that it included studies with a wide variety of methods for assessing hearing loss and symptoms of depression.

Still, the results of the analysis do add to evidence suggesting that there is a link between hearing loss and depression, said Dr. Nicholas Reed of the Cochlear Center for Hearing and Public Health at Johns Hopkins University School of Medicine in Baltimore.

First, hearing loss impairs communication and influences balance, which can lead to social isolation and decreased physical activity that, in turn, result in depression, Reed said.

Hearing loss may also cause tinnitus, or perceived ringing or buzzing in the ear, that can be especially debilitating in some cases and contribute to depression, Reed, who wasn’t involved in the study, said by email.

In addition, hearing loss may trigger changes in the brain that contribute to depression.

“When we experience hearing loss, it also means that we’re sending a weaker auditory signal to our brains for processing,” Reed said. “This weak signal may mean our brains have to go into overdrive to understand sound (i.e. speech) which may come at the expense of another neural process (i.e., working memory). Also, the weak signal may cause certain neural areas and pathways to reorganize, which could change how our brain, including aspects that regulate depression, function.”

While the study doesn’t examine whether treating hearing loss can prevent depression or other health problems, people should still seek help for hearing difficulties, said David Loughrey, a researcher at the Global Brain Health Institute at Trinity College Dublin who wasn’t involved in the study.

“Hearing loss has been linked to difficulties in daily life including difficulty with socializing and fatigue due to the increased mental effort required to understand speech, especially in noisy environments,” Loughrey said by email. “If someone is experiencing difficulties due to hearing loss or if they have any concerns about their mental wellbeing, they should consult a medical professional who can assist them.”

May 1, 2019

NAELA News:

Updated: As the U.S. population continues to get older, more attorneys are entering the field of elder law or expanding their practice to provide elder law services.

Between baby boomers reaching senior citizenship, declining birthrates and longer lifespans, the United States will become a lot grayer over the next few decades. The U.S. Census Bureau projects that by 2035, for the first time in American history, there will be more adults age 65 and older than children. By 2060, nearly a quarter of Americans will be age 65 and older, while the number of people age 85 and older will triple.

“As the American population grays, the need for attorneys who understand the unique aspects of planning for the elderly and people with special needs will grow,” says Michael J. Amoruso, president of the National Academy of Elder Law Attorneys. According to him, the NAELA has seen a significant increase in membership in anticipation of this boom.

Elder law encompasses a variety of specialties, including estate tax, wills, trusts and probate, special needs and disability trusts. Although these categories may be part of an elder law practice, they are also legal issues that affect younger people, as well.

“Some of the areas of practice that have traditionally been considered a part of elder law actually impact people regardless of their age,” says Marvin S.C. Dang, a Honolulu attorney and chair of the ABA’s Senior Lawyers Division. “For example, it’s not just the elderly who need protection from financial exploitation or who need custodial care. And it’s not only senior citizens who require a guardian after they have a stroke, early onset of Alzheimer’s disease or ALS (amyotrophic lateral sclerosis).”

Joseph Marrs, an attorney based in Houston who focuses his practice in estate and trust litigation, has noted an increase in his practice of elder law-related cases.

“Elder law entails a broad spectrum of services,” Marrs says. “Tax law, for example, which is often seen as part of elder law, is really an entire field itself.”

Marrs says he litigates a lot of disputes among heirs and beneficiaries, and that he’s argued many cases involving trusts and estates, execution of wills, power of attorney disputes and guardianship issues.

To serve the legal needs of an aging nation, he foresees an increase in judges and associate judges to handle the anticipated increase.

Dang agrees, adding that “bar associations, such as the American Bar Association and state and local bar associations, should continue to work with the judiciary to ensure that judges are knowledgeable about elder law issues and to support creating specialized courts or programs focused on the needs of senior citizens.”

Because of the breadth and the complexity of law affecting the elderly, in the mid-1990s, the NAELA began an educational program in elder law leading to certification. The program is ongoing and periodically updated. Certification is awarded by the National Elder Law Foundation, an affiliate of the NAELA. The NELF and the NAELA are two separate nonprofit organizations.

Attorney Bill Browning, a certified elder law practitioner based in Worthington, Ohio, helped write the first set of examinations for certification.

“The [first hand-written] examination was a daylong effort, much like a state bar exam,” Browning says.

Today, the exam is administered via computer and entails the many additional legal developments and issues since the first certification examination.

“Certification means that the attorney has passed a rigorous exam and has met the other criteria for specialization in this field,” Browning says.

According to Browning, certified lawyers are not necessarily more knowledgeable than the noncertified.

“For example, in the probate and estate planning area, there are some very knowledgeable, even outstanding attorneys who choose not to make the effort to get certified,” he says.

In some circumstances, certification may allow attendance at more advanced programs and periodic updates. The NAELA has special programs for those who are certified, Browning says.

As for the growing number of lawyers entering this practice category, Browning says: “Changing demographics and [changes] in the estate tax laws are also factors driving the increase of elder law attorneys.” He notes that the increase in the estate and gift tax exemption, which is $11.4 million this year, decreases the need for complex estate tax planning and significantly changes the practice of probate law.

With less work to do in their legal specialty, tax attorneys have moved into more diversified practices, including elder law, according to Browning.

Meanwhile, Elder Law College, a for-profit organization that teaches practicing lawyers to enter the field of elder law, has noted an increase in attorneys going into elder law.

Enrollment in Elder Law College has been increasing in recent years, according to Scott Solkoff, an attorney practicing elder law and principal and lead instructor of the Fort Collins, Colorado, institution.

Despite that, Solkoff says Elder Law College tries to limit enrollment to keep class sizes smaller. He also says 95 percent of the college’s graduates are solo practitioners or from law firms with fewer than five attorneys.

“Perhaps the influx of attorneys in this field may come from new lawyers, as law schools offer more courses and clinics in elder law,” says Yale S. Hauptman, an elder, estate and special needs law attorney who practices in Livingston, New Jersey.

As baby boomers continue to grow older and die in the coming years, Hauptman says, their estates will pass on to heirs and will be “the largest transfer of wealth we have ever seen. Both traditional wills and trusts attorneys and elder law attorneys are skilled to take on these cases.”

Beyond the strictly legal aspects of elder law services, attorneys should take a more comprehensive approach to the needs of their clients.

“When advising elderly clients, lawyers should be prepared to take a holistic approach,” Dang says. “Many areas can be impacted, such as housing assistance, economic needs, health and medical concerns, financial planning and tax considerations. Lawyers need to be educated and trained to recognize myriad legal issues and to determine the optimal ways to help their senior citizen clients.”

To that end, Dang encourages bar associations, including the ABA, to take “a proactive leadership role to ensure that young attorneys and seasoned attorneys are provided relevant educational materials and have the opportunity to network with other elder law attorneys.”

May 1, 2019

Many people think that estate plans are for someone else, not them. They may rationalize that they are too young or don’t have enough money to reap the tax benefits of a plan. But as the following list makes clear, estate planning is for everyone, regardless of age or net worth.

1. Loss of capacity. What if you become incompetent and unable to manage your own affairs? Without a plan the courts will select the person to manage your affairs. With a plan, you pick that person through a power of attorney.

2. Minor children. Who will raise your children if you die? Without a plan, a court will make that decision. With a plan, you are able to nominate the guardian of your choice.

3. Dying without a will. Who will inherit your assets? Without a plan, your assets pass to your heirs according to your state’s laws of intestacy (dying without a will). Your family members (and perhaps not the ones you would choose) will receive your assets without benefit of your direction or of trust protection. With a plan, you decide who gets your assets, and when and how they receive them.

4. Blended families. What if your family is the result of multiple marriages? Without a plan, children from different marriages may not be treated as you would wish. With a plan, you determine what goes to your current spouse and to the children from a prior marriage or marriages.

5. Children with special needs. Without a plan, a child with special needs risks being disqualified from receiving Medicaid or SSI benefits, and may have to use his or her inheritance to pay for care. With a plan, you can set up a supplemental needs trust that will allow the child to remain eligible for government benefits while using the trust assets to pay for non-covered expenses.

6. Keeping assets in the family. Would you prefer that your assets stay in your own family? Without a plan, your child’s spouse may wind up with your money if your child passes away prematurely. If your child divorces his or her current spouse, half of your assets could go to the spouse. With a plan, you can set up a trust that ensures that your assets will stay in your family and, for example, pass to your grandchildren.

7. Financial security. Will your spouse and children be able to survive financially? Without a plan and the income replacement provided by life insurance, your family may be unable to maintain its current living standard. With a plan, life insurance can mean that your family will enjoy financial security.

8. Retirement accounts. Do you have an IRA or similar retirement account? Without a plan, your designated beneficiary for the retirement account funds may not reflect your current wishes and may result in burdensome tax consequences for your heirs. With a plan, you can choose the optimal beneficiary.

9. Business ownership. Do you own a business? Without a plan, you don’t name a successor, thus risking that your family could lose control of the business. With a plan, you choose who will own and control the business after you are gone.

10. Avoiding probate.Without a plan, your estate may be subject to delays and excess fees (depending on the state), and your assets will be a matter of public record. With a plan, you can structure things so that probate can be avoided entirely.

May 1, 2019

Many people believe that joint accounts are a good way to avoid probate and transfer money to loved ones. But while joint accounts can be useful in certain circumstances, they can have dire consequences if not used properly. Adding a loved one to a bank account can expose your account to the loved one’s creditors as well as affect Medicaid planning.

Once money is deposited in a joint account, it belongs to both account holders equally, regardless of who deposited the money. Account holders can withdraw, spend, or transfer money in the account without the consent of the other person on the account. Before putting anyone on a joint account with you, you need to be sure you can trust that person because he or she will have full access to the account. When one account holder dies, the money in the account automatically goes to the other account holder without passing through probate.

One problem with joint accounts is that it makes the account vulnerable to all the account owner’s creditors. For example, suppose you add your daughter to your bank account. If she falls behind on credit card debt and gets sued, the credit card company can use the money in the joint account to pay off your daughter’s debt. Or if she gets divorced, the money in the account could be considered her assets and be divided up in the divorce.

Joint accounts can also affect Medicaid eligibility. When a person applies for Medicaid long-term care coverage, the state looks at the applicant’s assets to see if the applicant qualifies for assistance. While a joint account may have two names on it, most states assume the applicant owns the entire amount in the account regardless of who contributed money to the account. If your name is on a joint account and you enter a nursing home, the state will assume the assets in the account belong to you unless you can prove that you did not contribute to it.

In addition, if you are a joint owner of a bank account and you or the other owner transfers assets out of the account, this can be considered an improper transfer of assets for Medicaid purposes. This means that either one of you could be ineligible for Medicaid for a period of time, depending on the amount of money in the account. The same thing happens if a joint owner is removed from a bank account. For example, if your spouse enters a nursing home and you remove his or her name from the joint bank account, it will be considered an improper transfer of assets.

There is a better way to conduct estate planning and plan for disability. A power of attorney will ensure family members have access to your finances in the case of your disability. If you are seeking to transfer assets and avoid probate, a trust may make better sense. To learn more, talk to your attorney.

May 1, 2019

How can you make sure your funeral and burial wishes will be carried out after you die? It is important to let your family know your desires and to put them in writing. Just don’t do it in your will.

To help your loved ones follow your wishes after you are gone, you can write out detailed funeral preferences as well as the requested disposition of your remains. In addition to explaining where you want your funeral to be held, the document can include information about who should be invited, what you want to wear, who should speak, what music should be played, and who should be pallbearers, among other information. Making these decisions ahead of time can not only let everyone know what your wishes are, it can also help your family members during their time of grief.

It may be tempting to include this information in your will, but a will may not be opened until long after the funeral is over. A will is best used for explaining how to distribute your property, not for funeral instructions. You can write your funeral and burial directions in a separate document or you may be able to put your wishes in your health care directive. Whatever you do, make sure your family knows where to find the information.

If you don’t make your wishes known, the responsibility for determining your funeral and burial rests with your loved ones. If you are married, your spouse is usually in charge of making the decisions. If you are not married, the responsibility will likely go to your children, parents, or next of kin. Disputes could arise between family members over what you would have wanted.

It is possible to make funeral arrangements ahead of time with a funeral home. However, be wary of pre-paid funeral plans. Consumers can lose money when pre-need funeral funds are misspent or misappropriated. A funeral provider could mishandle, mismanage or embezzle the funds. Some go out of business before the need for the pre-paid funeral arises. Others sell policies that are virtually worthless.

For help with making your funeral wishes known, talk to your attorney.

May 1, 2019

Whether it’s an honor or a burden (or both), you have been appointed trustee of a trust. What responsibilities have been thrust upon you? How can you successfully carry them out?

Here are nine do’s and one don’t to get you started:

Do read the trust document. It sets out the rules under which you will operate, so you need to understand it completely.

Do create a checking account for the trust. All income and expenses should go through this account. While you can and should invest the money, a checking account will enable you to make distributions and payments and keep track of them.

Do keep the best interests of the beneficiaries in mind at all times. You have what’s called a “fiduciary” duty to them, which is an extremely high standard.

Don’t have any personal financial dealings with the trust. For instance, you cannot borrow money from the trust or lend the trust money to anyone.

Do provide the beneficiaries and anyone else indicated in the trust with an annual account of trust activity. This can be a copy of the checking and investment account statements or a more formal trust account prepared by an accountant or attorney.

Do invest the trust funds prudently and productively. You cannot simply leave the trust funds in a savings account. And you can’t put them all into a promising new company. You need to diversify the trust portfolio among stocks and fixed income securities. It is wise to get professional investment advice.

Do keep in regular contact with the beneficiaries to understand their needs.

Do be aware of any public benefits the beneficiaries may be receiving and make sure you do not jeopardize the beneficiaries’ eligibility.

Do file annual income tax returns for the trust.

Don’t fly solo. Get professional advice to make sure you are correctly fulfilling your role.

May 1, 2019

NAELA News:

News Release

SOCIAL SECURITY

Social Security Combined Trust Funds Gain One Year Says Board of Trustees

Disability Fund Shows Strong Improvement—Twenty Years
The Social Security Board of Trustees today released its annual report on the long-term financial status of the Social Security Trust Funds. The combined asset reserves of the Old-Age and Survivors Insurance and Disability Insurance (OASI and DI) Trust Funds are projected to become depleted in 2035, one year later than projected last year, with 80 percent of benefits payable at that time.

The OASI Trust Fund is projected to become depleted in 2034, the same as last year’s estimate, with 77 percent of benefits payable at that time. The DI Trust Fund is estimated to become depleted in 2052, extended 20 years from last year’s estimate of 2032, with 91 percent of benefits still payable.

In the 2019 Annual Report to Congress, the Trustees announced:

The asset reserves of the combined OASI and DI Trust Funds increased by $3 billion in 2018 to a total of $2.895 trillion.

The total annual cost of the program is projected to exceed total annual income, for the first time since 1982, in 2020 and remain higher throughout the 75-year projection period. As a result, asset reserves are expected to decline during 2020. Social Security’s cost has exceeded its non-interest income since 2010.

The year when the combined trust fund reserves are projected to become depleted, if Congress does not act before then, is 2035 – gaining one year from last year’s projection. At that time, there would be sufficient income coming in to pay 80 percent of scheduled benefits.

“The Trustees recommend that lawmakers address the projected trust fund shortfalls in a timely way in order to phase in necessary changes gradually and give workers and beneficiaries time to adjust to them,” said Nancy A. Berryhill, Acting Commissioner of Social Security. “The large change in the reserve depletion date for the DI Fund is mainly due to continuing favorable trends in the disability program. Disability applications have been declining since 2010, and the number of disabled-worker beneficiaries receiving payments has been falling since 2014.”

Other highlights of the Trustees Report include:

Total income, including interest, to the combined OASI and DI Trust Funds amounted to just over $1 trillion in 2018. ($885 billion from net payroll tax contributions, $35 billion from taxation of benefits, and $83 billion in interest)

Total expenditures from the combined OASI and DI Trust Funds amounted to $1 trillion in 2018.

Social Security paid benefits of nearly $989 billion in calendar year 2018. There were about 63 million beneficiaries at the end of the calendar year.

The projected actuarial deficit over the 75-year long-range period is 2.78 percent of taxable payroll – lower than the 2.84 percent projected in last year’s report.

During 2018, an estimated 176 million people had earnings covered by Social Security and paid payroll taxes.

The cost of $6.7 billion to administer the Social Security program in 2018 was a very low 0.7 percent of total expenditures.

The Board of Trustees usually comprises six members. Four serve by virtue of their positions with the federal government: Steven T. Mnuchin, Secretary of the Treasury and Managing Trustee; Nancy A. Berryhill, Acting Commissioner of Social Security; Alex M. Azar II, Secretary of Health and Human Services; and R. Alexander Acosta, Secretary of Labor. The two public trustee positions are currently vacant.

May 1, 2019

NAELA News: In a decision issued on March 27, 2019, a federal judge denied multiple attempts by the federal government to halt a lawsuit by Medicare patients seeking a right to appeal their placement on “outpatient observation status” in hospitals. Alexander v. Azar is a nationwide class action brought by individuals who were forced to pay up to $30,000 for post-hospital skilled nursing facility care because they had been classified as outpatients in observation status, rather than as inpatients.

Although care provided to patients on observation status is often indistinguishable from inpatient care, it does not count toward the three-day inpatient hospital stay requirement for Medicare coverage of nursing home care. This leaves beneficiaries with the burden of paying for – or forgoing – extremely costly nursing and rehabilitative care. The opportunity to appeal is critical because of the severe ramifications that can result from the observation status categorization. Class member Ervin Kanefsky of Pennsylvania, for example, a 93-year-old World War II veteran, had to pay approximately $10,000 for nursing home care after being hospitalized for a shoulder fracture for five days. He was initially admitted as an inpatient but later was told that the “powers that be” had changed his status to observation before he was discharged.

In a 50-page opinion, the court addressed the government’s motion for summary judgment, motion to “decertify” the class, and motion to dismiss the case. Each motion was denied. Judge Michael P. Shea concluded that the evidence plaintiffs submitted could reasonably establish that physician decisions about whether to classify patients as inpatients are “meaningfully constrained” by criteria set by Medicare. Class members may therefore possess a “property interest” in the Medicare coverage they seek, a necessary component of their constitutional due process claim. The court also concluded that the plaintiffs continue to have standing to bring the case, and that their claims are not moot. The court declined to take the drastic step of decertifying the class, but did modify the class definition to target individuals who have been harmed by observation status in specific ways, and requested further briefing from the parties on that issue. In concluding his opinion, Judge Shea emphasized that the action, now approaching its eighth year, must proceed to trial without delay.

Plaintiffs’ lead attorney, Alice Bers of the Center for Medicare Advocacy, welcomed the decision: “People who have paid into Medicare their whole lives, and who risk having to pay thousands of dollars for necessary medical care, deserve a fair process to determine whether they will receive Medicare coverage.” Co-counsel Luke Liss of Wilson Sonsini Goodrich & Rosati, echoed Bers’s observations: “We look forward to showing at trial that these vulnerable patients have a right to appeal to Medicare as matter of constitutional due process.” Co-counsel Regan Bailey of Justice in Aging added, “Hospitals routinely appeal Medicare’s determination of whether a stay was inpatient or observation status. Older adults and people with disabilities should have the same right.”

May 1, 2019

NEW YORK (Reuters) – The U.S. government on Monday said it would increase by 2.53 percent on average 2020 payments to the health insurers that manage Medicare Advantage insurance plans for seniors and the disabled, a reflection of a new estimate on medical cost growth.

The rate, which affects how much insurers charge for monthly healthcare premiums, plan benefits and, ultimately, how much they profit, represents an increase over the 1.59 percent increase proposed by the Centers for Medicare & Medicaid Services (CMS) in February.

The government raised the final payment rate from the proposed rate after revising its estimate for increases in medical services for next year. Its final estimate of that growth rate is 5.62 percent compared with 4.59 percent in its February proposal.

“Most of the puts-and-takes remained the same as proposed, but CMS upped the growth rate, which is definitely helpful in 2020,” said Ipsita Smolinski, managing director at healthcare research consulting firm Capitol Street.

Medicare Advantage plans serve more than 20 million people, most of them aged 65 and older.

Shares in insurers were unchanged in after hours trading. UnitedHealth Group Inc, Humana Inc, CVS Health Corp, through its acquisition of Aetna, and WellCare Health Plans Inc are the largest sellers of Medicare Advantage health insurance.

Under the program, they are paid a set rate by the government to cover member healthcare costs.

In addition to medical costs, the government’s 2020 payment rate also factors in other changes in policies, such as quality of care related payments that may result in declines or increases from year to year.

For instance, the 2020 rate reflected a decline in payments of 3.08 percent related to the Affordable Care Act requirement that Medicare Advantage and fee-for-service Medicare have the same payment structure.

Starting in 2020, Medicare Advantage plans will also be able to offer supplemental non-health related benefits to chronically ill enrollees that address their social needs, CMS Administrator Seema Verma said. Those can include needed structural changes to the home, such as adding ramps and widening doorways.

The plans can tailor these offerings to individuals, and the offerings could increase competition between plans, Verma said.

Previously, plans have only been allowed to offer health related benefits.

Medicare Advantage competes with the traditional Medicare fee-for-service program. Both have grown as the “Baby Boomer” generation ages into Medicare. Together, they cover more than 55 million people.